CALIFORNIA WILLS & DECEDENTS’...

CALIFORNIA WILLS & DECEDENTS’ ESTATES PROFESSOR ZACHARY KRAMER

ARIZONA STATE UNIVERSITY SANDRA DAY O'CONNOR COLLEGE OF LAW

CHAPTER 1: TERMINOLOGY; INTESTATE SUCCESSION—SPOUSES

A. Key Terminology

• Decedent—someone who has ___________________________________ • Will—a legal document used to dispose of the decedent’s property • Testate—the decedent dies ___________________________________ a will • Intestate—the decedent dies ___________________________________ a will

Exam Tip 1: Note that a decedent can die testate as to some property and intestate as to other property if some of the decedent’s probate property is not covered by a will.

• Codicil—a ___________________________________ that amends or revokes a decedent’s will in whole or in part

• Probate—judicial process for administering and settling the decedent’s estate • Intestate Succession—___________________________________ estate plan developed by the

legislature when the decedent dies intestate • Heirs—individuals entitled to receive property by intestate succession

o ___________________________________ people do not have heirs.

• Spouse—decedent’s ___________________________________ partner

o Surviving spouse—outlives the decedent o Legal marriage or registered domestic partner

• Issue/Descendants—decedent’s ___________________________________ line (kids, grandkids, great-grandkids, etc.)

• Ancestors—decedent’s ___________________________________ line (parents, grandparents, etc.)

• Collaterals—relatives through an ancestor (siblings, cousins, aunts, uncles, etc.) • Community/Separate Property—classify property as either community or separate property

o Always watch for classification moments

B. Intestacy

• When a decedent dies without a will, the decedent’s estate is distributed by intestate succession.

o Default estate plan developed by the legislature

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• Decedent’s actual intent is ___________________________________ • Individuals entitled to take an intestate share are called the decedent’s

___________________________________.

o The two primary heirs are the decedent’s:

___________________________________, and ___________________________________.

• An heir must survive the decedent.

o Special Case 1: Kids’ kids

Children of a parent can stand in the parent’s place for purposes of intestate succession We call this ___________________________________.

o Special Case 2: Simultaneous Death

How to determine whether an heir survives the decedent Common Law Rule: an heir’s survival must be proved by a

___________________________________ of the evidence. Uniform Simultaneous Death Act (USDA): when there is insufficient evidence of who

died first, the property will pass as though each had ___________________________________ the other.

• An heir must be proven by clear and convincing evidence to have survived the decedent by ___________________________________.

• In California, the 120-hour rule only applies to intestacy, not wills.

C. Share of the Surviving Spouse

1. Who qualifies as a spouse?

o A legally-___________________________________ partner, or o A ___________________________________ partner o This excludes unmarried ___________________________________.

2. Calculating the surviving spouse’s share

a. Classify property

Distinguish between ___________________________________ and ___________________________________ property

b. Community property

Includes quasi-community property

• Property acquired by a marital couple while living ___________________________________ that would have been community if acquired in ___________________________________

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Under intestacy, the surviving spouse is entitled to the decedent’s one-half of the community property.

• This means the surviving spouse is entitled to ___________________________________ of the community estate.

c. Separate property

1) Spouse +0

• If the decedent is not survived by descendants, parents, or siblings, the surviving spouse gets the ___________________________________ of the decedent’s separate property.

2) Spouse +1

• If the decedent is survived by one lineal descendant, or by a parent or issue of the parent, the surviving spouse gets ___________________________________ of the decedent’s separate property.

3) Spouse +2

• If the decedent is survived by more than one lineal descendent, the surviving spouse gets ___________________________________ of the decedent’s separate property.

Example 1: Decedent dies owning $500,000 in property. $100,000 of the property is community property; the rest is separate property. He is survived by his registered domestic partner and the couple’s daughter. What is the partner’s share?

Answer: ___________________________________

D. No Heirs

If the decedent dies intestate with no heirs, the property ___________________________________ to the state.

Example 2: Decedent dies owning $100,000 of property. Decedent has no family or friends, save for a cat that pities him and steals his food when he’s not looking. Decedent’s estate will escheat to the state.

CHAPTER 2: INTESTATE SUCCESSION—ISSUE

A. Who Qualifies as Issue

• Decedent’s lineal line (children, grandchildren, great-grandchildren, etc.) • There must be a ___________________________________ relationship.


o Adopted children can inherit from adoptive parents just like biological children. o Adoption usually works to ___________________________________ the child’s

relationship with his or her natural parents.

• Special Case 1: Stepparent adoption

o Creates a parent-child relationship between the child and the stepparent o Does not prevent the adoptee from inheriting from the other biological parent

• Special Case 2: Posthumously-born children

o Arises when a child is conceived ___________________________________ but is born ___________________________________ the death of the mother’s husband

o If the child is born within ___________________________________ days of the husband’s death, there is a rebuttable presumption that the child is the husband’s and the child will inherit as though it was born before the father died.

Note 1: If the child is born more than 300 days after the husband’s death, the child will have to prove parentage in order to inherit from the husband.

B. Calculating the Issue’s Intestate Shares

• California uses two possible methods to calculate the intestate shares of issue.

1. Per Capita

o Applies when surviving issue are of ___________________________________ degree of kinship (all in the same generation)

o Each survivor takes an ___________________________________ share.

Example 3: A is the decedent below:

E, F, G, and H all receive a _________________________________ share. E and F do not split their share because each surviving issue in this same generation takes an equal share, regardless of parentage.

2. Per Capita with Representation

o When a child dies but is survived by issue, the issue stands in the place of the deceased child.

o Three steps:

A

B

E F

C

G

D

H I


1. Divide the estate equally at the first generation where a ___________________________________ the decedent.

2. If there are deceased members at that generation, their shares drop down to their surviving issue.

3. If a deceased member has no surviving issue, that member does not take a share.


Step 1: A had three kids, and C is the only survivor. That is the generation where we divide the estate. Thus, we divide the estate into equal 1/3 shares. C will take a 1/3 share.

Step 2: B’s and D’s 1/3 shares drop to their surviving issue. Because B is survived by G, G will stand in B’s shoes and take B’s 1/3 share. Because D is survived by H, I, and J, they will divide D’s share into equal parts, taking 1/9 each.

Step 3: Each line is survived by living issue, so each share is accounted for.

Summary:

C = 1/3

G = 1/3

H, I, J = 1/9 each


F, H, J, K, and L survive the decedent.

A

C

E

B

F G

D

H I J

A

B

E

J

C

F

D

G

K L

H I


Step 1: The first generation with a member surviving is E’s generation (the second generation; A’s grandchildren). Divide the shares based on the number of members living or represented. E is dead but is represented by J. F is alive. G is dead but represented by K and L. H is alive. I is dead and not represented by issue. Thus, we divide the estate into 4 shares (E, F, G, and H).

Step 2: E’s 1/4 share drops to J. F receives 1/4. G’s 1/4 share drops and is divided equally between K and L, giving them 1/8 each. H receives 1/4.

Step 3: I does not take any share because I has no living issue.


F, J, K, and L survive the decedent.

Step 1: The first generation with a surviving member is E’s generation (the second generation; A’s grandchildren). E is dead but is represented by J. F is alive. G is dead but represented by K and L. H and I are both dead and neither are represented by issue. Thus, we divide the estate into 3 shares (E, F, and G).

Step 2: E’s 1/3 share drops to J. F receives 1/3. G’s 1/3 share drops and is divided equally between K and L, giving them 1/6 each.

Step 3: H and I do not receive a share.

3. Illustration

Decedent dies intestate, leaving an estate worth $750,000 (150,000 is community). Decedent is survived by Spouse. Decedent and Spouse had 2 children, A and B. B predeceased Decedent, leaving two surviving children, X and Z. How is the estate divided among Decedent’s family members?

Spouse takes (“spouse +2” applies): ____________________________

A will take: ___________________________________

X and Z will each take: ___________________________________

A

B

E

J

C

F

D

G

K L

H I


C. Disinherited Children

• Must be done by a properly executed ___________________________________

o Otherwise, they will receive their ___________________________________ share.

• Disinherited heirs are treated as if they predeceased the decedent.

CHAPTER 3: EXECUTION OF WILLS; HOLOGRAPHIC WILLS; CODICILS; WILL SUBSTITUTES

A. Formal Wills

Exam Tip 2: This is a highly tested area of law on the California bar examination.

Exam Tip 3: The testator can dispose of all separate and half community property by a valid will.

Exam Tip 4: Quasi-community property does not come into play until death or divorce.

• A valid will must meet three formal execution requirements:

1. ___________________________________ writing; 2. ___________________________________; and 3. Testamentary ___________________________________.

o These are referred to as will “formalities.”

Note 2: How will the courts approach a will that is missing one of these formalities? It could require strict compliance or could take a more relaxed approach to the formalities.

1. Signed Writing

o The entire will must be written (or typed) and signed by the ___________________________________.

o California does not permit ___________________________________ wills.

a. Signature location

Some states require that the will be signed at the ________________________ of the document.

In California, the signature can be located ___________________________________ of the will.

• It is most important that the testator intended her name to be her signature.

Note 3: Under the second rule (signature on any part of the will), the court will accept the signature to validate the will, but the court might not give effect to the words after the signature.


b. Capacity

The testator must be:

At least ___________________________________ years of age; and Of sound mind.

c. Form of signature

A formal signature is not required. The signature must indicate the testator’s desire to

___________________________________.

Example 7: Terrance Taylor signs his will “T-Bone,” his usual nickname. This should be sufficient, so long as he intends for this to be his signature.

2. Witnesses

California requires that the will be signed in the presence of at least ___________________________________ witnesses.

a. Signatures

The witnesses must also sign the document, though not necessarily at the same time.

b. Presence

In California, the ___________________________________ must sign or acknowledge the will in the presence of the ___________________________________.

Although most witnesses sign in the presence of each other, this is not required. In California, the witnesses must sign within the

___________________________________ of the testator (before the testator ___________________________________).

Two views:

• ___________________________________—traditional approach

o The witness and the testator must ___________________________________ or have the opportunity to observe the signing of the will.

• ___________________________________—modern approach

o Party observing the act must be _________________________________ that the act is being performed.

o They do not need to actually observe the act.

• California follows the conscious presence test.

c. Interested witnesses

When a witness has a direct financial interest under the will


Example 8: T-Bone Taylor executes a will that is witnessed by Amy and Bethany. The will gives Amy $10,000 and nothing to Bethany. Amy is an interested witness.

At common law, an interested witness was ___________________________________ to witness the will.

Many states have modified the common law by statute:

• Unless there were two other disinterested witnesses, a ___________________________________ presumption is created that the interested witness exerted undue influence.

• If the witness can rebut the presumption, the witness receives his share of the estate.

• If not, the interested witness can still receive the amount that he would under ____________________________________________________.

Example 9: T-Bone Taylor executes a will witnessed by Amy, Bethany, and Carmen. The will gives Amy $10,000, and nothing to Bethany or Carmen. Can Amy take under T-Bone’s will? Yes, Amy can take under the will because there are two disinterested witnesses.

3. Testamentary Intent

o The testator must have the ___________________________________ intent to make a testamentary gift (i.e., a gift at death).

Example 10: As he is signing his will, T-Bone Taylor tells his attorney he would “like to have a week to go over the will to make sure I’m happy with it.” Is there present testamentary intent? Probably not. A court may refuse to admit T-Bone’s will for lack of testamentary intent.

Example 11: Although the document says “Last Will and Testament” at the top, T-Bone thinks he is signing a real estate contract. He voluntarily signs. Will the court find present testamentary intent? Probably not, because T-Bone did not know he was executing a will.

o The testator must be least 18 years old and of sound mind. o Competency is measured at the time of the ___________________________________.

Subsequent incompetence will not invalidate the will.

B. Compliance with Will Formalities

• Common law was ___________________________________ about compliance with all will formalities.

Example 12: T-Bone Taylor’s Will was typed in full, properly signed at the bottom, and signed by witness Amy. Bethany was supposed to sign as a second


witness, but accidentally forgot to sign. Under the common law, the will is invalid because the will formalities require two witnesses to sign.

• The modern view, adopted in California, allows for ___________________________________ compliance.

o This is sometimes called the “harmless error” doctrine. o The court will nevertheless admit the will to probate if there is

______________________________________________ evidence that the decedent intended the document to serve as her will.

Example 13: Easily distracted, Darla forgot to sign T-Bone’s will as a witness. T-Bone and the other witness properly signed the will. The will was typed in full, with “T-Bone Taylor’s Last Will and Testament” typed at the top. He had also revised the will several times with the help of his lawyer. Under the substantial compliance doctrine, a California court may still admit the will to probate.

o Look for testator intent. Did the testator intend, at the time of signing, for this document to serve as a will?

o Note that in California, the harmless error doctrine does not apply to the testator’s ___________________________________.

C. Holographic Wills

• A holographic will is an informal, handwritten will. • It does not have to be __________________________________________.

Example 14: On a napkin, T-Bone Taylor writes, “I leave everything to my wife, Charlene Taylor,” and signs it “Terrance Taylor.” This is a holographic will.

• To be valid, a holographic will must be ___________________________________.

1. How much writing?

o In some jurisdictions, any markings not in the testator’s handwriting will invalidate the holographic will.

o California only requires that the ___________________________________ provisions be in the testator’s handwriting (e.g., who takes, what they take, in what shares).

2. Testamentary Intent

Look for words or phrases that suggest intent.

Example 15: On a piece of stationary, T-Bone Taylor writes how he wants his property to be divided upon his death. He uses words like “bequeath” and “inherit,” which are evidence of testamentary intent.

Exam Tip 5: If you get a problem where someone writes, by hand, something about their property, talk about holographic wills. Intent is very important.


D. Codicils

• A codicil is a ___________________________________ to a will. • It does not ___________________________________ the underlying will.

Example 16: T-Bone’s will gave everything to his wife, Charlene. Later, T-Bone executes a codicil to give half his estate to his best friend, Hank Mardukas. Charlene and Hank will each take half of the estate because the codicil has modified the will. The prior will is not revoked; it is just amended or supplemented.

Exam Tip 6: A codicil must be executed with the same formalities as a will. Formal wills must be signed, witnessed, etc. Holographic wills must be handwritten and signed.

Exam Tip 7: A formal will may be modified by a holographic codicil, and a holographic will may be modified by a formal codicil.

E. Will Substitutes (Non-Probate Transfers)

A decedent can avoid probate by transferring property through a will substitute.

• Joint Tenancy—avoids probate because it has a right of ___________________________________

• Revocable Trust—avoids probate because it is an ___________________________________ transfer

• Pour-Over Will—avoids probate because it distributes property under a ___________________________________

• Payable on Death (POD) Clauses (Contracts, pension plans, and other documents)—avoids probate because it distributes by an ___________________________________ transfer

Example 17: T-Bone Taylor takes out a life insurance policy naming his wife, Charlene, as the beneficiary. On T-Bone’s death, the proceeds of the policy are not part of T-Bone’s probate estate because they were payable on T-Bone’s death (POD).

• Deed—avoids probate because it is an ___________________________________ transfer

CHAPTER 4: REVOCATION

A. Revocation of Wills

Exam Tip 8: This is a highly tested topic.

• Wills are ambulatory (i.e., they are capable of being changed at any time up until the testator’s ___________________________________).

• A will can be revoked in full or in part. • In California there are three ways to revoke a will:


1. By subsequent ___________________________________; 2. By ___________________________________ act; or 3. By operation of ___________________________________.

Revocation by Subsequent Instrument

A testator can revoke a will by a later will or codicil.

a. Express revocation

Later writing (i.e., a will or codicil) that expressly revokes a prior will

Example 18: T-Bone Taylor validly executes Will 1. Later, T-Bone executes Will 2, which includes the following clause: “Will 1 is hereby revoked.” Will 2 is the operative document because it is later in time, provided that it was validly executed.

Example 19: T-Bone Taylor validly executes Will 1. A year later, T-Bone calls his lawyer and requests that the lawyer “revoke the first will, it’s garbage.” Is this a valid revocation? ___________________________________, oral revocation is not enough to revoke (must be in writing).

b. Inconsistency

A later writing may be inconsistent with a prior will. So long as it is validly executed, the ___________________________________

document controls.

Example 20: In his will, T-Bone Taylor gives his estate to his wife, Charlene. Later, T-Bone executes a will giving his wife Charlene $50,000 and the residue of his estate to his best friend, Hank Mardukas. Because the later will has a residuary gift, it revokes the first will by inconsistency.

Exam Tip 9: You must be able to distinguish between a codicil and a new will. Look for a residuary gift.

If the original will had a residuary gift and the later writing does not, the later writing is likely a ___________________________________.

If the original will does not have a residuary gift and the later writing does, the later writing is likely a ___________________________________.

2. Revocation by Physical Act

o A testator may revoke a will in its entirety by engaging in a physical act of destruction, such as:

___________________________________, burning, or crossing out the document.


Exam Tip 10: In order to revoke a will, the testator must ___________________________________ for the physical act to revoke the will.

Example 21: Clumsy T-Bone Taylor accidentally set fire to his will while trying to light a cigar. This is not a valid revocation because T-Bone did not intend to revoke the will.

o Specific language—must destroy any material portion of the will o Lost wills: If a will, once known to exist, cannot be found at the testator’s death, this creates

a ___________________________________ presumption that the testator revoked the will by physical act.

The burden is on the ___________________________________ to show the will’s existence by clear and convincing evidence.

Duplicate originals ___________________________________ be admitted to probate, but a copy of the original ___________________________________ be admitted to probate.

Example 22: After executing his will at his lawyer’s office, T-Bone wanted to keep the original under his bed at home. The lawyer kept a photocopy on file. At T-Bone’s death, the will cannot be located. This creates a rebuttable presumption that T-Bone revoked the will by physical act. Although T-Bone’s estate can try to rebut the presumption, the photocopy may not be admitted to probate in place of the original will.

3. Revocation by Operation of Law

o Divorce or dissolution of a registered domestic partnership will ___________________________________ all will provisions in favor of the former spouse or partner, unless there is evidence that the testator wanted those provisions of the will to survive.

Example 23: A will that states, “even if we are divorced, I still want my spouse to take their share.”

o Separation without ___________________________________ does not affect the rights of the surviving spouse.

B. Revocation of Codicils

• By revoking a will, the testator also revokes any ___________________________________ attached to the will.

Example 24: T-Bone Taylor executed a will giving his estate to his wife Charlene. Later, T-Bone executed a codicil that gave his best friend Hank Mardukas half of his estate. If at some later point T-Bone revokes the original will, this will also revoke the codicil to Hank Mardukas.


• The same is not true for revoking a codicil. If a testator revokes a codicil, the underlying will is ___________________________________ in its original form.

Example 25: T-Bone Taylor executed a will giving his estate to his wife Charlene. Later, T-Bone executed a codicil that gave his best friend Hank Mardukas half of his estate. If at some later point T-Bone revokes the codicil, the underlying will is revived and Charlene will take the entire estate upon T-Bone’s death.

C. Revival

Exam Tip 11: This is a highly testable topic.

1. No Automatic Revival

Like most states, California ___________________________________ recognize automatic revival of a revoked will.

Example 26: T-Bone Taylor executes a will giving his estate to his wife Charlene. Later, T-Bone executes a new will, which not only splits his estate between Charlene and his best friend Hank Mardukas, but also expressly revokes the first will. T-Bone and Hank have a falling out and T-Bone revokes the second will. Revocation of the second will does not automatically revive the first will. In order for the testamentary gift to Charlene to be admitted to probate, T-Bone will need to ___________________________________ the first will.

If T-Bone doesn’t re-execute, he will die without a will, and his estate will be distributed through the rules of ___________________________________.

2. Dependent Relative Revocation (DRR)

o DRR provides a safety valve for testators who revoke a will on the basis of a ___________________________________.

o The mistake can be a mistake of ___________________________________ or a mistake of ___________________________________.

o DRR will invalidate a mistaken revocation.

Example 27: T-Bone Taylor executes a will giving his entire estate to his best friend Hank Mardukas. After T-Bone gets word that Hank has died, he executes a new will giving his entire estate to his wife Charlene. If it turns out that Hank is in fact alive and well, Hank can seek to have DRR applied to undo the revocation of the first will, on the theory that the revocation of the first will was conditioned on a mistake of fact (i.e., Hank’s death).

Example 28: T-Bone Taylor executes a will giving his entire estate to his best friend Hank Mardukas. T-Bone attempts to create a second will and writes on the first will that “this will is revoked because I have made a new will, /s T-Bone


Taylor.” If it turns out that the second will is not valid, Hank can seek to have DRR applied to undo the revocation of the first will on the theory that the revocation of the first will was conditioned on a mistake of law (i.e., valid execution of the second will).

Exam Tip 12: If you see a fact-pattern involving revocation based on a mistake, argue intent. Argue that if it wasn’t for the mistake, the testator would not have revoked. The mistake caused the revocation. If the mistaken revocation can be undone (through DRR), we can effectuate the testator’s true intent.

CHAPTER 5: CONSTRUCTION OF WILLS

A. Interpreting Wills

1. Plain Meaning Doctrine

o Courts tend to give words in a will their ___________________________________.

Assume the testator meant the plain meaning of what he or she said, even if he or she meant something else (unless the will states otherwise).

o Extrinsic evidence is ___________________________________. We do not go beyond the four corners of the document to determine meaning.

2. Incorporation by Reference

o Concerns documents outside the will itself (extrinsic documents) o A will may incorporate an extrinsic document that is not testamentary in nature, provided:

The document is in ___________________________________ at the time of execution;

Note 4: The California Probate Code (CPC) will waive this rule if the document disposes of only personal property.

The testator ___________________________________ the document to be incorporated into the will; and

The document is ___________________________________ in the will with sufficient certainty as to permit its identification.

Example 29: A clause in T-Bone Taylor’s will provides, “This will makes bequests in accordance with the list provided in my sketchbook, which I keep in the bottom drawer of my desk.” After T-Bone’s death, the executor searches and finds the document.

Example 30: Compare the above clause with this clause, “This will makes bequests in accordance with the list that I keep in my house.” That document is not sufficiently described.


3. Acts of Independent Significance

A testator can dispose of property based on some act or event that is ___________________________________ to the execution of the will.

Example 31: T-Bone’s will provides “I devise my stamp collection to my daughter-in-law at the time of my death.” The law presumes that the son’s marriage has nothing to do with the will.

Exam Tip 13: This doctrine applies to acts that occur in the future (after the execution of the will). That makes it different from both republication by codicil and incorporation by reference.

4. Lapse and the Anti-Lapse Statute

o At common law, a testamentary gift would ___________________________________ if the intended beneficiary did not survive the testator.

Failed gifts would fall into the ___________________________________ gift, if there was one.

Example 32: T-Bone devises “My car to my best friend, Hank Mardukas.” Hank dies before T-Bone. The gift to Hank lapsed at common law and would go to the residue of the estate.

o Like most states, California has adopted an anti-lapse statute which provides an ___________________________________ disposition for lapsed gifts.

o Anti-lapse statutes are designed to ___________________________________ certain gifts from lapsing.

Blood relation: The lapsed gift must have been intended for a relation of the testator.

Example 33: Testator’s child, grandchild, sibling

Survived by issue: The statute only applies when the predeceased relative is survived by issue.

Example 34: T-Bone Taylor’s will provides, “$10,000 to my son, Alex.” Alex predeceases T-Bone and is survived by a son, Anton.

Step 1: Alex is a blood relative of the testator (T’s son).

Step 2: Although Alex predeceased T-Bone, Alex is survived by issue, Anton.

Because Alex and T-Bone are related, and because Alex is survived by Anton, the statute prevents the gift from lapsing. Thus, Anton takes the gift under the anti-lapse statute.

o Class gifts—gift to a group of people (“my grandchildren,” etc.)

At common law, class gifts were an exception to the lapsed gifts rule.


• If a gift to one member of the class lapsed, the rest of the class shared that member’s gift.

• Keep this rule in mind when there is a class gift and the lapsed recipient is not protected by the CA anti-lapse statute.

If the class member is covered by the anti-lapse statute and leaves issue, the anti-lapse statute controls.

5. Classifying Gifts

o Specific gift—a gift of a ___________________________________ piece of property

Example 35: T-Bone devises “my stamp collection to Hank Mardukas.”

o General gift—a gift of property satisfied from ___________________________________ assets

Example 36: T-Bone devises “$10,000 to my nephew Alex.

o Demonstrative gift—a ___________________________________ gift from a ___________________________________ source

Example 37: T-Bone devises “$10,000 to my daughter Bonnie from my Bank USA account, but if the funds are insufficient, then from the estate’s general assets.”

o Residuary gift—anything left over

Example 38: T-Bone devises “the rest of my property to X.”

6. Ademption

a. Ademption by extinction

Applies when a will makes a ___________________________________ devise of property, but that property is no longer in the estate at the testator’s death

• This could be due to the transfer of the property or because it was destroyed or lost.

Traditional Rule (Identity Theory): the specific devise was “extinct” and the devisee takes nothing

California and Modern Rule (___________________________________ Theory): look to the testator’s intent at the time that she ___________________________________ of the property

• Look for facts indicating the testator intended the ademption.

Exam Tip 14: Courts will try to avoid ademption if possible by identifying replacement property.


Example 39: T-Bone Taylor devises his cherished stamp collection to his son, Harvey. When he made the will, T-Bone owned the stamp collection. Later, however, T-Bone sold the stamps. With the money he made on the stamps, T-Bone bought a rare picture of Elvis playing racquetball, which he owned at his death. Under the CPC, Harvey could receive the photo as replacement property, if this is determined to be consistent with T-Bone’s intent.

b. Ademption by satisfaction

Applies when a testator satisfies a general, specific, or demonstrative gift, either in whole or in part, by an ___________________________________ transfer

In order for the gift to be satisfied, one of the following must be present:

• The instrument provides for the ___________________________________ of the lifetime gift from the at-death transfer;

• The testator expressed intent to adeem in a ___________________________________ writing that is signed by testator;

• Transferee acknowledged in writing that lifetime gift satisfies the at-death transfer; or

• Property given is the same property subject to the specific gift.

B. Ambiguities and Mistakes

1. Ambiguities

Example 40: T-Bone’s will devises his stamp collection to “my brother.” However, T-Bone has two brothers, Arnold and Bernie.

This is a ___________________________________ ambiguity because it is not ambiguous on its face. It is only ambiguous if you know T-Bone has two brothers.

Example 41: T-Bone’s will devises some real estate to his brother. At one point in the document, it lists the address as “1122 Boogie Boogie Avenue,” while in another spot in the document it lists the address as “2211 Boogie Boogie Avenue.”

This is a ___________________________________ ambiguity because it is ambiguous on the face of the document.

o Traditionally, courts required patent ambiguities to be resolved without looking to extrinsic evidence, while extrinsic evidence was admissible to resolve latent ambiguities.

o Today, most courts, including courts in California, allow __________________________ ambiguities to be resolved with reference to extrinsic evidence.

2. Mistakes

o Courts tend to be less forgiving about mistakes.


Example 42: In drafting his will, T-Bone accidentally gave his stamp collection to Arnold instead of giving it to Bernie, an avid stamp collector. Even if Bernie can prove the mistake, courts are likely to leave the provision as executed.

o An unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake.

CHAPTER 6: POWER TO TRANSFER

We are primarily concerned with limits on the testator’s power to transfer, specifically in three situations: 1. The rights of the testator’s ___________________________________ 2. Gifts to the testator’s ___________________________________ 3. Bars to succession, in particular, the “___________________________________” and disclaimer

A. Rights of the Surviving Spouse

A surviving spouse is entitled to a number of means of support under California law:

• Social security and pension • Homestead exemption • Personal property set-asides • Family allowance for reasonable living expenses • ___________________________________ share and/or • ___________________________________ Property

1. Elective Share (common law states)

o If a surviving spouse is unhappy with his or her share under the will or intestacy, the spouse can elect to take a ___________________________________ share.

o This means the spouse’s elective share may change or disrupt the gifts to other beneficiaries.

o There is no elective share in community property states.

2. Community Property

o The surviving spouse already owns one-half of the community property. o It is the other one-half that is subject to disposition by will.

3. Omitted Spouse/Partner

o If a marriage or partnership occurs after the will is executed, the omission is treated as a ___________________________________ revocation.

o The omitted spouse/partner takes an ___________________________________ share. o Limit: Regarding the decedent’s separate property, the intestate share is capped at

___________________________________ the value of the separate estate.


This limit applies after the spouse receives the community share.

B. Gifts to Children

1. Advancements

An advancement is a lifetime gift to a child that is treated as satisfying all or part of the child’s ___________________________________ share.

Exam Tip 15: Operates like ademption by satisfaction (testate), except advancements deal with intestate succession.

a. When is a lifetime gift an advancement?

Common Law: Any ___________________________________ gift was presumed to be an advancement of the child’s intestate share. The ___________________________________ had the burden to show that the gift was an absolute gift.

California: A gift is an advancement only if:

• The decedent declared in a ___________________________________ writing that the gift was an advancement (or the heir acknowledged as such in writing); OR

• The decedent’s or heir’s writing otherwise indicates that the gift should be taken into account when computing the division of property of the decedent’s estate.

b. Calculate advancements via Hotchpot Analysis

1. ___________________________________ the value of the advancement(s) back into the intestate estate.

2. ___________________________________ the resulting estate by the number of children taking.

3. ___________________________________ the child’s advancement from the child’s intestate share.

Example 43: The decedent dies intestate, leaving three children—A, B, and C—and an intestate estate worth $50,000. A received an advancement worth $8,000 and B received an advancement worth $2,000. C did not receive an advancement. What is each child’s intestate share?

(1) ADD: $50,000 + $8,000 + $2,000 = $__________________________

(2) DIVIDE: $60,000/3 = $_________________________ for each child.

(3) DEDUCT: $20,000 – $8,000 = $__________________________ for A

$20,000 – $2,000 = $__________________________ for B

$20,000 – 0 = $_______________________________ for C


2. Omitted Children

a. Intentional disinheritance

If done so intentionally, a parent is free to disinherit his children.

Example 44: T-Bone’s will provides, “I have intentionally not made any gifts to my child, Bernard, for he is a rotten child and unworthy of my love or money.”

b. Unintentional disinheritance

This is the “oops” situation. California has a special rule for dealing with this situation.

Example 45: A couple drafts wills and then has a child. The couple forgets to change their wills. The child in this case will take an intestate share.

In some states: The omitted child receives an intestate share. In California: The omitted child receives an intestate share.

Example 46: A couple has a child and then they draft wills. They put the child’s name in the wills. Then the couple has a second child, and do not amend the wills. The wills mention the first child by name but do not mention the second child. What happens to the second (omitted) child?

In some states: The second (omitted) child partially ___________________________________ the first child of his devises and they have to share.

In California: An omitted child receives an ___________________________________ share regardless of whether the first child takes a share under the will.

C. Bars to Succession

1. The Slayer Rule

o A person cannot profit from murdering another. In the will context, a beneficiary who murders the decedent is barred from taking under the decedent’s will.

o A beneficiary who murders the testator is treated as if he ___________________________________ the testator.

Exam Tip 16: Courts have not applied the Slayer Rule in involuntary manslaughter or self-defense cases. The murder must be intentional and felonious.

o California does not apply the ___________________________________ doctrine to save a gift to a killer in favor of the killer’s issue.

2. Disclaimer

o A person may disclaim a testamentary gift (usually for tax reasons). o A valid disclaimer must:


1. Be in ___________________________________, signed, and filed with the court, or declared to the person distributing the estate; AND

2. Identify the ___________________________________, describe the interest being disclaimed, and define the extent of the disclaimer.

o The disclaimer must disclaim within ___________________________________ of the testator’s death.

3. Elder Abuse

In California, someone who is convicted of financial exploitation, abuse, or neglect of a person under their care is prohibited from inheriting from that person.

CHAPTER 7: WILL CONTESTS

A. In General

• Will contests—Objections to the validity of the will, most commonly the testator’s capacity • Only ___________________________________ parties have standing to challenge a will.

o Interested party—anyone who might get a financial benefit under the will, or someone who would take under intestate succession, but does not take under the will

• Keep in mind: The contestant must challenge ___________________________________.

B. Testamentary Capacity

• In order to execute a will in California, the testator must be at least ___________________________________ years old and must be of ___________________________________.

1. General Testamentary Capacity

o The contestant bears the burden of proving that the testator lacked the requisite mental capacity at the time of the ___________________________________ of the will. (“The ___________________________________ Question”)

o Ask whether the testator had the ability to know:

The nature of the act (“The ___________________________________ Question”); The nature and character of her property (“The

___________________________________ Question”); The natural objects of her bounty (“The ___________________________________

Question”); and The plan of the attempted disposition (“The ___________________________________

Question”).

Exam Tip 17: The issue is NOT whether the testator actually knew these things. The issue is whether the testator had the ability to know them.


Example 47: T-Bone has a bit of a drinking problem and occasionally suffers from memory lapses. This does not by itself mean that T-Bone lacks capacity to make a will; it does not mean that he lacked capacity at the time he executed the will.

Example 48: T-Bone suffered from intermittent bouts of dementia. While he was meeting with his lawyer to execute his will, T-Bone became disorientated and couldn’t remember the names and faces of his two children, Bonnie and Clyde, who were the sole beneficiaries of his will. At that point in time, it is questionable whether T-Bone was able to know the natural objects of his bounty.

Example 49: Same facts as above, except T-Bone could recognize Bonnie and Clyde, but he could not remember where he was or who his lawyer was, and could not remember how much property he actually owned. It is likely that T-Bone lacked general capacity, as he didn’t know what he was doing at the time.

2. Insane Delusion

o An insane delusion is a ___________________________________ belief to which the testator adheres despite all reason and evidence to the contrary.

o The testator may have general capacity, but still have an insane delusion as to some belief.

Objective Test: Measure the testator’s insane delusion against that of a ___________________________________ in the testator’s position. A belief is an insane delusion if a rational person could not have reached the same conclusion.

Causation: The contestant must show that the insane delusion was a “_________________________________” cause of the testamentary disposition.

Example 50: T-Bone Taylor was convinced that his wife Charlene was cheating on him. So convinced of this fact, T-Bone would sit on the couple’s stoop and confront men who walked by, accusing them of having sex with his wife. He would not permit Charlene to be home alone because he was worried that her paramours would visit her while he was away from the house. Charlene vehemently denied the allegation. T-Bone’s will provides, “I leave nothing to my wife because of her rampant pattern of adultery.” In this case, Charlene would have a good case to challenge on insane delusion grounds.

C. Undue Influence

1. Basic Idea

o Think in terms of a ___________________________________ relationship o Contestant alleges that a third party effectively controlled the testator’s decision-making

process (caused the testator to make the particular property division)


2. Required Proof

o What are we looking for?

Victim’s ___________________________________ (i.e., testator is vulnerable in some way, such as a weakened intellect)

Influencer’s apparent ____________________________________________ Influencer’s actions or tactics ___________________________________ of the result

o Evidence of an inequitable result, without more, is not sufficient to prove undue influence.

3. Presumption of Undue Influence

o A presumption of undue influence arises when the principal beneficiary of a will:

1. Has a ___________________________________ relationship with the testator (e.g., lawyer, doctor, clergy); and

2. Actively participated in making the will; and 3. The gift is unnatural.

Note 5: The confidential relationship is often professional in nature, such as a doctor, lawyer, therapist, or familial.

o If the contestant meets this burden, the burden shifts to the proponent (beneficiary) to show by _____________________________________________ evidence that there was no undue influence.

4. Consequences

If there was undue influence, the beneficiary is treated as if he or she ___________________________________ the testator to the extent the gift exceeds the beneficiary’s intestate share, if any.

Exam Tip 18: The key element of undue influence is ___________________________________—the suspect beneficiary exerted improper influence that caused this strange distribution.

5. California Statutory Presumptions

o In California, a gift to any of these beneficiaries is rebuttably presumed invalid:

1. The ___________________________________ of the will; 2. A fiduciary who transcribed the will or caused it to be transcribed; 3. A care custodian of the testator who is a dependent adult, if the will was executed when

services were provided or within 90 days thereafter; 4. A person connected to the drafter, transcriber, or care custodian; or 5. A partner or employee of the law firm of the drafter or transcriber.

o This can be rebutted by ___________________________________ evidence.


D. Fraud

• Contestant has the burden to show that the beneficiary engaged in an unlawful ___________________________________________ at the time of the execution.

1. Elements

o Contestant must show that the beneficiary made the representation with:

The _____________________ to deceive the testator; and The _____________________ of influencing the testamentary disposition.

Exam Tip 19: As with an insane delusion or undue influence challenge, the misrepresentation must have caused the testamentary disposition.

2. Kinds of Fraud

a. Fraud in the Inducement

Misrepresentation causes the testator to make a different will than the testator would have otherwise made.

Example 51: T-Bone’s sole heir, Bonnie, convinces T-Bone not to execute a will in favor of his best friend Hank Mardukas by promising that she will convey the property to Hank after T-Bone is dead. At the time, Bonnie has no intention of conveying to Hank. This is fraud in the inducement.

b. Fraud in the Execution

Misrepresentation as to the ___________________________ or ______________________________ of the will.

Example 52: Knowing that T-Bone has poor eyesight and can’t read his will, Bonnie promises T-Bone that his will transfers all his property to his best friend Hank Mardukas. But the document actually transfers the property to Bonnie and her brother Clyde, in equal shares. T-Bone signs the will. This is fraud in the execution.

3. Remedy

A _____________________________________________ is the most common remedy for fraud.

Exam Tip 20: Undue influence and fraud require an act of a third party, but an insane delusion arises solely in the mind of the testator. No external act is necessary to show an insane delusion.


CHAPTER 8: THE PROBATE PROCESS

A. Probate and Administration

1. The Probate Process

o The first step is classifying all property as probate or non-probate. o Probate property is property that passes by ___________________________________ or

___________________________________ succession o Non-probate property passes by an instrument other than a will, including:

Deed Trust Joint tenancy (with right of survivorship) POD Contract

Exam Tip 21: Don’t forget about intestate succession. If the decedent does not have a will or the testator’s will is invalid, probate property will still pass by intestate succession.

2. Why Probate?

The primary purpose of probate is the orderly administration of the decedent’s estate. This includes:

o Protecting and satisfying ___________________________________; o Quieting contested titles and transferring titles to rightful holder; o Protect the testator’s interest (against fraud, undue influence, etc.); and o Efficiently handling ___________________________________.

Note 6: Only those who stand to benefit financially as a will beneficiary or intestate heir have standing to contest a will.

3. Basic Probate Checklist

o Step 1: Identify whether property is probate or non-probate.

Who takes the non-probate property? Everything else is probate property.

o Step 2: Identify testate and intestate property.

Is there a will? Is the will valid? Who are the intended beneficiaries?

o Step 3: Is there any property not devised by a valid will?

If so, it will pass by intestate succession.

B. Filing/Jurisdiction

• The county in which the decedent was ___________________________________ at the time of death has jurisdiction over the decedent’s estate (both real and personal property in the county).


• If the decedent owns real property elsewhere, ___________________________________ jurisdiction applies to that property.

C. Abatement

• If the estate does not have enough assets to satisfy the gifts in the will, the gifts will be ___________________________________ in a specific order.

• Unless the will says otherwise, gifts are abated in the following order:

1. ___________________________________ property—least protected (first thing to be reduced);

2. Property in a ___________________________________ gift; 3. General bequests to people other than relatives; 4. ___________________________________ bequests to relatives; 5. Specific bequests to people other than relatives; and 6. Specific bequests to relatives.

Exam Tip 22: If they can be satisfied, demonstrative legacies are treated as ___________________________________ gifts. Otherwise, they are treated as ___________________________________ gifts.

D. Will Contests

• Timing: Contestant must challenge probate within ___________________________________ after probate is opened or the claim is ___________________________________.

• Standing: Only interested parties can contest the will.

E. Creditors

• Non-claim statute: a creditor must make a claim on the decedent’s estate within a certain time period. If a claim is not brought within that window, the claim is ___________________________________.

• The personal representative must provide notice to the creditors.

F. Forfeiture Clauses

• A no-contest clause expressly stated in the will. It provides that if a beneficiary contests the will, she will lose her share under the will.

• California: These are ___________________________________, though they are subject to strict construction.

o Only enforced against contests without any ___________________________________

G. Personal Representative

• Person who acts on behalf of the estate during the probate process

o If appointed by the court—estate ___________________________________ o If named in the will—estate ___________________________________


• Duties of the Personal Representative

o Inventory, ___________________________________ and manage the estate o Locate and contact interested parties, including ___________________________________ o Satisfy debts (including ___________________________________, burial expenses, and

___________________________________) o Distribute the remaining assets o Close the estate

• Duties owed by the Personal Representative

o Personal representative is a fiduciary and owes the duties of ___________________________________ and ___________________________________.

o Personal representatives cannot engage in self-dealing and cannot do business with the estate.

Example 53: Decedent is an art collector. She appoints her best friend, also an art collector, to serve as the administrator. The best friend wants to buy a piece of art from the estate—not appropriate, as this is self-dealing and a per se violation of the duty of loyalty.

• The personal representative is entitled to reasonable ___________________________________ from the estate.

H. General Advice

• Study your way—don’t worry about others. • Stress is not a bad thing—let it motivate you. • Don’t be overwhelmed—eat, rest, take a break!

GOOD LUCK ON THE EXAM!

[END OF HANDOUT]

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